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EXHIBIT 10.3
[VANTIVE LOGO]
VANTIVE AGREEMENT NUMBER: ▇▇▇▇▇▇▇▇▇
THE VANTIVE CORPORATION
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement (the "Agreement") is between The
Vantive Corporation with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. ("Vantive") and SAGE NETWORKS, INC. ( legal name)
with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Client"). The terms of this Agreement shall apply to each
Product license granted, and to all services provided under this Agreement. When
completed and executed by both parties, an Order Form shall evidence the Product
licenses granted and the services that are to be provided by Vantive.
I. DEFINITIONS
1.1. "PRODUCT" OR "PRODUCTS" shall mean the computer software in object code
form, and, in certain parts, source code form, owned or distributed by
Vantive for which Client is granted a license pursuant to this Agreement;
the media; the user guides and manuals for use of the software
("DOCUMENTATION"); and Updates.
1.2. "ORDER FORM" shall mean Vantive's standard form for ordering Product
licenses and services. When placing orders under this Agreement, Client
shall reference the Vantive Agreement number above and the Effective Date
of this Agreement.
1.3. "PRICE LIST" shall mean Vantive's standard commercial fee schedule that is
in effect when and where a Product license or any other product or service
is ordered and utilized by Client.
1.4. "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form.
1.5. "SUPPORTED PRODUCT LICENSE" shall mean a Product license for which Client
has ordered Customer Support for the relevant time period. "Customer
Support" shall mean Product support provided under Vantive's policies in
effect on the date Customer Support is ordered or renewed.
1.6. "COMMENCEMENT DATE" shall mean the date on which the Products are shipped
by Vantive to Client, or if no delivery is necessary, the Effective Date
set forth on the relevant Order Form.
1.7. "UPDATE(S)" shall mean subsequent releases of the Products which are
generally made available for Supported Product Licenses at no additional
charge, other than media and handling charges. Updates shall not include
any releases, options or future products which Vantive licenses
separately.
1.8. "USER," "NAMED USER" unless otherwise specified in the Order Form, shall
mean an individual or process which is authorized by Client to use
specified Products, regardless of whether the individual or process is
actively using the Products at any given time. A "CONCURRENT USER" shall
mean each User who is using a specified Product, directly or indirectly,
at a given point in time. "MOBILE USER" shall mean a workstation that is
authorized to use Vantive "On-the-Go" Product.
1.9. "LIMITED PRODUCTION PRODUCTS" shall be Products not specified on the Price
List or specified as Limited Production or "Alpha" or "Beta" by Vantive.
II. PRODUCT LICENSE
2.1 RIGHTS GRANTED
A. Vantive grants to Client a non-exclusive license to use the Products
Client obtains under this Agreement, as follows:
i. to use the Products solely for Client's own internal data
processing operations on the Designated System or on a backup
system if the Designated System is inoperative, up to any
applicable maximum number of designated Users or Concurrent Users
consistent with applicable licensed use limitations. Client may
not relicense the Products or use the Products for third party
training, commercial time-sharing, rental or service bureau use;
ii. to use the Documentation provided with the Products in support of
Client's authorized use of the Products;
iii. to copy the Products for archival or backup purposes; no other
copies shall be made without Vantive's prior written consent. All
titles, trademarks, copyright and restricted rights notices shall
be reproduced in such copies. All archival and backup copies of
the Products are subject to the terms of this Agreement; and
iv. to modify the Products or combine them with other software
products. The Products or such portions thereof included in such
software products shall remain the property of Vantive and shall
be subject to the terms of this Agreement.
Client shall not copy or use the Products (including the
Documentation) except as otherwise specified in this Agreement or an
Order Form. Client shall have the right to allow Client's third party
agents ("Agents") to use the Products for Client's internal use
purposes so long as Client ensures that Agents use the Products in
accordance with the terms of this Agreement.
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B. Client agrees not to cause or permit the reverse engineering,
disassembly or decompilation of the Products. In jurisdictions where
a right to reverse engineer is provided by law unless information is
available about products in order to achieve interoperability,
functional compatibility, or similar objectives, Client agrees to
submit a detailed written proposal to Vantive concerning Client's
information needs before engaging in reverse engineering. Vantive
may, in its sole discretion, propose to Client terms and conditions
under which it is willing to make such information available.
C. Vantive or its licensor's shall retain all title, copyright, trade
secrets, patents, trademarks and other proprietary rights in the
Products and all modifications, enhancements, and other works
derivative of the Products. Client does not acquire any rights,
express or implied, in the Products, other than those specified in
this Agreement.
D. The Products are not intended for use in any nuclear, aviation, mass
transit, medical, life support or other inherently dangerous
applications or support thereof. It shall be Client's responsibility
to take all appropriate measures to ensure the safe use of such
applications if the Products are used for such purposes, and Vantive
disclaims liability for any damages caused by such use of the
Products and Client agrees to indemnify, defend and hold Vantive
harmless for all claims arising from or related to such use.
E. Other Vantive products and/or runtime versions of third party
software, including but not limited to relational database management
systems, may be embedded in or delivered with Vantive Products
licensed under this Agreement ("Ancillary Product"). Client shall be
limited to use of Products licensed under this Agreement. Client's
right to use any Ancillary Product shall be only as described in the
Order Form or Documentation and limited to the use necessary to
implement the Vantive Product ordered, as designated on the Order
Form. Client shall have no right to use such Ancillary Product other
than as necessary for the licensed ordinary use of the Vantive
Product ordered and grants Vantive's licensors the right to protect
its interests under this Agreement and agrees that such licensors are
benefited by the provisions of this Agreement.
F. As an accommodation to Client, Vantive may supply Client with Limited
Production Products. These Products are not suitable for production
use.
2.2 TRANSFER AND ASSIGNMENT
A. Client may transfer a Product license within its organization upon
written notice to Vantive; transfers are subject to the terms and
fees, if any, specified in Vantive's transfer policy in effect at the
time of the transfer.
B. Client may not assign this Agreement to a third party (i.e. a legal
entity separate from Client) without the prior written consent of
Vantive, and any such attempt shall be void. Vantive shall not
unreasonably withhold such consent.
2.3 VERIFICATION
On Vantive's written request, not more frequently than annually, Client
shall furnish Vantive with a signed certification (a) verifying that the
Products are being used pursuant to the terms of this Agreement and
applicable Order Form; and (b) listing the locations, and types of the
Designated Systems on which the Products are run.
Vantive may, at its expense, audit Client's use of the Products. Any such
audit shall be conducted during regular business hours at Client's
facilities and shall not unreasonably interfere with Client's business.
Audits shall be conducted no more than once annually.
III. PROFESSIONAL SERVICES
3.1 CUSTOMER SUPPORT SERVICES
Customer Support services ordered by Client will be provided subject to
Vantive's Customer Support policies and fees in effect on the date
Customer Support is ordered or renewed. Reinstatement of lapsed Customer
Support Services is subject to Vantive's Customer Support reinstatement
fees in effect on the date Customer Support is re-ordered, subject to
payment by Client of the applicable fee. Client may obtain Customer
Support Services for pre-production releases of Products and Limited
Production Products on a time and materials basis.
3.2 CONSULTING AND TRAINING SERVICES
Vantive will provide consulting and training services agreed to by the
parties under the terms of this Agreement. All consulting services shall
be billed on a time and materials basis unless the parties expressly agree
otherwise in writing. Any consulting or training services acquired from
Vantive shall be bid separately from the Product licenses and Client may
acquire either Product licenses or consulting services without acquiring
the other.
Client agrees if Client hires any Vantive employee, consultant or
subcontractor within twelve (12) months from the last date such person
provided services hereunder, Client agrees to pay Vantive 50% of the first
year's total compensation package offered by Client to that Vantive
employee, consultant or subcontractor.
3.3 INCIDENTAL EXPENSES
For any on site services requested by Client, Client shall reimburse
Vantive for actual, reasonable travel and out-of pocket expenses incurred.
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IV. TERM AND TERMINATION
4.1 TERM
If not otherwise specified on the Order Form, each Product license granted
under this Agreement shall remain in effect perpetually, unless terminated
as provided in Section 4.2 or 4.3 below or otherwise as provided herein.
4.2 TERMINATION BY CLIENT
Client may terminate any Product license at any time; however, termination
shall not relieve Client's obligations specified in Section 4.4.
4.3 TERMINATION BY VANTIVE
Vantive may terminate this Agreement or any Product license upon written
notice if Client breaches this Agreement and fails to correct the breach
within 30 days following written notice specifying the breach.
4.4 EFFECT OF TERMINATION
Termination of this Agreement or any license shall not limit either party
from pursuing any other remedies available to it, including injunctive
relief, nor shall such termination relieve Client's obligation to pay all
fees that have accrued or are otherwise owed by Client under any Order
Form or other similar ordering document under this Agreement. The parties'
rights and obligations under Sections 2.1.B, 2.1.C, 2.1.D, 2.1.E and
2.2.B, and Articles IV, V, VI,VII, and VIII shall survive termination of
this Agreement.
4.5 HANDLING OF PRODUCTS UPON TERMINATION
If a license granted under this Agreement expires or otherwise terminates,
Client shall (a) cease using the applicable Products, and (b) certify to
Vantive within one month after expiration or termination that Client has
destroyed or has returned to Vantive the Products and all copies. This
requirement applies to copies in all forms, partial and complete, in all
types of media and computer memory, and whether or not modified or merged
into other materials. Before returning Products to Vantive, Client shall
acquire a Return Material Authorization ("RMA") number from Vantive.
V. INDEMNITY, WARRANTIES, REMEDIES
5.1 INFRINGEMENT INDEMNITY
Vantive will defend and indemnify Client against a claim that Products
furnished and used within the scope of this Agreement infringe a United
States copyright or patent provided that: (a) Client notifies Vantive in
writing within 30 days of the claim; (b) Vantive has sole control of the
defense and all related settlement negotiations; and (c) Client provides
Vantive with the assistance, information and authority necessary to
perform Vantive's obligations under this section. Reasonable out-of-pocket
expenses incurred by Client in providing such assistance will be
reimbursed by Vantive.
Vantive shall have no liability for any claim of infringement based on;
(a) use of a superseded or altered release of Products if the infringement
would have been avoided by the use of a current unaltered release of the
Products that Vantive provides to Client; or (b) the combination,
operation or use of any Products furnished under this Agreement with
software, hardware or other materials not furnished by Vantive if such
infringement would have been avoided by the use of the Products without
such software, hardware or other materials.
In the event the Products are held or are believed by Vantive to infringe,
Vantive shall have the option, at its expense, to (a) modify the Products
to be non infringing, (b) obtain for Client a license to continue using
the Products; or (c) terminate the license for the infringing Products and
refund the license fees paid for those Products, prorated over a five year
term from the Commencement Date. This Section 5.1 states Vantive's or
Vantive's licensor's entire liability and Client's exclusive remedy for
infringement or any intellectual property warranty.
5.2 WARRANTIES AND DISCLAIMERS
A. PRODUCT WARRANTIES
Vantive warrants that each unmodified Product for which the Client has
a Supported Product License will perform the functions described in the
Documentation when operated on the Designated System.
B. MEDIA WARRANTY
Vantive warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days from
the Commencement Date.
C. SERVICES WARRANTY
Vantive warrants that its Customer Support and consulting services will
be performed consistent with generally accepted industry standards.
This warranty shall be valid for 90 days from performance of service.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
VANTIVE DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CLIENT'S
REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE IN THE COMBINATIONS WHICH
CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PRODUCT ERRORS WILL BE
CORRECTED. VANTIVE DOES NOT WARRANT LIMITED PRODUCTION PRODUCTS.
LIMITED PRODUCTION PRODUCTS AND PRE-PRODUCTION RELEASES OF PRODUCTS ARE
DISTRIBUTED "AS IS."
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5.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 5.2 above, Client's
exclusive remedy, and Vantive's entire liability, shall be:
A. For Products
The correction of Product errors that cause breach of the warranty,
or if Vantive is unable to make the Products operate as warranted,
Client shall be entitled to recover the fees paid to Vantive for the
Product license or Update as applicable and shall cease using the
applicable Product or Update.
B. For Media
The replacement of defective media returned within 90 days of the
Commencement Date.
C. For Services
The reperformance of the services, or if Vantive is unable to perform
the services as warranted, Client shall be entitled to recover the
fees paid to Vantive for the unsatisfactory services.
VI. PAYMENT PROVISIONS
6.1 INVOICING AND PAYMENT
Invoices for payment of license fees shall be payable on the Commencement
Date. Customer Support fees shall be payable annually in advance, net 30
days from the renewal date; such fees will be those in effect at the
beginning of the period for which the fees are paid. All other applicable
fees shall be payable when invoiced. All fees shall be deemed overdue if
they remain unpaid 31 days after they become payable. Any amounts payable
by Client hereunder which remain unpaid 31 days after the due date shall
be subject to late penalty fees equal to 1.5 % per month from the due date
until such amount is paid. If Client's procedures require that an invoice
be submitted against a purchase order before payment can be made, Client
will be responsible for issuing the purchase order at the time of order.
Client agrees to pay applicable media and shipping charges.
6.2 TAXES
The fees listed in this Agreement do not include taxes; if Vantive is
required to collect or pay sales, use, property, value-added or other
taxes based on the licenses or services granted in this Agreement or on
Client's use of Programs or services, then such taxes shall be billed to
and paid by Client. This Section shall not apply to taxes based on
Vantive's income.
VII. GENERAL TERMS
7.1 NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information").
Confidential Information shall be limited to the Products, the terms and
pricing under this Agreement, and all information clearly identified as
confidential.
A party's Confidential Information shall not include information that: (a)
is or becomes a part of the public domain through no act or omission of
the other party; (b) was in the other party's lawful possession prior to
the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on
disclosure; or (d) is independently developed by the other party. Client
shall not disclose the results of any benchmark tests of the Products to
any third party without Vantive's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two years
after termination of this Agreement. The parties agree, unless required by
law, not to make each other's Confidential Information available in any
form to any third party or to use each other's Confidential Information
for any purpose other than the implementation of this Agreement. Each
party agrees to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees or agents in
violation of the terms of this Agreement.
7.2 GOVERNING LAW
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California,
without regard to the conflict of law principals or regard to the United
Nations Convention on Contracts for the International Sale of Goods and
shall be deemed to be executed in Santa Clara, California.
7.3 JURISDICTION
Any legal action or proceeding relating to this Agreement shall be
instituted in any state or federal court in San Francisco or Santa ▇▇▇▇▇
County, California. Vantive and Client agree to submit to the jurisdiction
of, and agree that venue is proper in, the aforesaid courts in any such
legal action or proceeding.
7.4 NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by first class mail or personal delivery (including overnight mail
by private carrier) to the first address listed in the relevant Order Form
(if to Client) or to the Vantive Address on the Order Form (if to
Vantive).
To expedite order processing, Client agrees that Vantive may treat
documents faxed by Client to Vantive as original
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documents; nevertheless, either party may require the other to exchange
original signed documents.
7.5 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force.
7.6 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or
breach. Except for actions for nonpayment or breach of Vantive's propriety
rights in the Products, no action, regardless of form, arising out of this
Agreement may be brought by either party more than one year after the
cause of action has accrued.
7.7 EXPORT ADMINISTRATION
Client agrees to comply fully with all relevant export laws and
regulations of the United States ("Export Laws") to assure that neither
the Products nor any direct product thereof are (1) exported, directly or
indirectly, in violation of Export Laws; or (2) are intended to be used
for any purposes prohibited by the Export Laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
7.8 U.S. GOVERNMENT
For any Products acquired directly or indirectly on behalf of a unit or
agency of the United States Government, this provision applies.
A. For civilian agencies: Products
(i.) were developed at private expense; are existing computer software and
no part of them were developed with government funds;
(ii.)are a trade secret of Vantive for all purposes of the Freedom of
Information Act;
(iii.) are commercial items and thus, pursuant to Section 12.212 of the
Federal Acquisition Regulations (FAR), the Government's use, duplication
or disclosure of the Products is subject to the restrictions set forth in
Vantive's standard commercial agreement incorporated into the contract or
purchase order between Vantive and the U.S. government agency.;
(iv.)in all respects are proprietary data of Vantive; and
(v.) are unpublished and all rights are reserved under the copyright laws
of the United States.
B. For units of the Department of Defense ("DoD"): The Products are
commercial computer software (and commercial computer software
documentation), and pursuant to DoD FAR Supplement Section 227.7202, use
duplication or disclosure of the Products is subject to the restrictions
set forth in Vantive's standard commercial agreement incorporated into the
contract or purchase order between Vantive and the U.S. Government agency.
7.9 RELATIONSHIP BETWEEN THE PARTIES
Vantive is an independent contractor; nothing in the Agreement shall be
construed to create a partnership, joint venture or agency relationship
between the parties
7.10 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties and
supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document,
usage or custom shall be deemed to amend or modify this Agreement.
It is expressly agreed that the terms of this Agreement and any Order Form
shall supersede and nullifies the terms in any Client purchase order or
other ordering document. This Agreement shall also supersede the terms of
any Vantive unsigned or shrinkwrap license included in any Vantive
package, media, or electronic version of Vantive software, provided the
use limitations contained in such license agreement shall be effective for
the specified license.
VIII. LIABILITY
8.1 LIMITATION OF LIABILITY
EXCEPT AS PROVIDED AT THE END OF THIS PARAGRAPH, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE INCURRED BY
EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT,
EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OF CLIENT FOR
CLAIMS OF INFRINGEMENT UNDER SECTION 5.1, VANTIVE'S LIABILITY FOR DAMAGES
HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CLIENT UNDER
THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM CLIENT'S USE OF THE
PRODUCT OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE
RELEVANT PRODUCT OR SERVICES GIVING RISE TO THE LIABILITY, PRORATED OVER A
FIVE-YEAR TERM FROM THE COMMENCEMENT DATE OF THE APPLICABLE LICENSE OR THE
DATE OF PERFORMANCE OF THE APPLICABLE SERVICES. CLIENT'S LIABILITY FOR
BREACH OF ITS NONDISCLOSURE OBLIGATIONS UNDER SECTION 7.1 OR FOR BREACH OF
THE SCOPE OF ITS LICENSE RIGHTS UNDER SECTION 2.1 SHALL NOT BE SUBJECT TO
THE FOREGOING LIMITATION OF DAMAGES OR LIABILITY.
The provisions of this Agreement allocate the risks between Vantive and
Client. Vantive's pricing reflects this allocation of risk and the
limitation of liability specified herein.
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THE EFFECTIVE DATE OF THIS AGREEMENT IS SEPTEMBER 29, 1998
EXECUTED BY VANTIVE:
Authorized Signature: /s/ ▇▇▇▇ ▇▇▇
_________________________
Name: ▇▇▇▇ ▇▇▇
_________________________________________
Title: Vice President of Finance
________________________________________
EXECUTED BY CLIENT:
Authorized Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
__________________________________________
Title: President
_________________________________________